AMLR.V3I1.HELMHOLZ.FINAL.WS
9/16/2008 4:12:32 PM
Copyright © 2005 Ave Maria Law Review
NATURAL LAW AND HUMAN RIGHTS IN
ENGLISH LAW: FROM BRACTON TO
BLACKSTONE
R. H. Helmholz †
Invocation of natural law seems to have passed out of fashion
among leaders of the movement for the extension of human rights.
One might have expected the opposite. Determining the origins and
scope of human rights presents a perplexing and persistent problem,1
and the law of nature has long occupied a place in Western
constitutional traditions.2 Indeed natural law has become almost
fashionable among some philosophers and teachers of jurisprudence.3
But no! Not a word about it appears in the nineteen-hundred-page
Encyclopedia of Human Rights, the most current such handbook
available.4 And Brian Simpson’s comprehensive account of the
genesis of the European Convention on Human Rights says nothing
to suggest that the law of nature played any part in his story.5 There
are notable exceptions,6 but the majority of human rights advocates
†
Ruth Wyatt Rosenson Distinguished Service Professor of Law, University of Chicago.
1. See, e.g., MICHAEL J. PERRY, THE IDEA OF HUMAN RIGHTS 11-41 (1998) (exploring the
philosophical underpinnings of human rights).
2. See generally Horst Dippel, Human Rights in America, 1776-1849: Rediscovering the
States’ Contribution, 67 ALB. L. REV. 713, 714 (2004); Herbert Hovenkamp, Law and Morals in
Classical Legal Thought, 82 IOWA L. REV. 1427 (1997).
3. See, e.g., Colloquium, Natural Law, the Constitution and the Theory and Practice of
Judicial Review, 69 FORD. L. REV. 2269 (2001); Symposium, Natural Law v. Natural Rights: What
Are They? How Do They Differ?, 20 HARV. J.L. & PUB. POL’Y 627 (1997); Symposium, Natural
Law, 4 S. CAL. INTERDISC. L.J. 455 (1995); Symposium, Perspectives on Natural Law, 61 U. CIN. L.
REV. 1 (1992); Symposium, Natural Law and Legal Reasoning, 38 CLEV. ST. L. REV. 1 (1990).
4. See EDWARD LAWSON, ENCYCLOPEDIA OF HUMAN RIGHTS (1991).
5. A. W. BRIAN SIMPSON, HUMAN RIGHTS AND THE END OF EMPIRE: BRITAIN AND THE
GENESIS OF THE EUROPEAN CONVENTION (2001).
6. Bruce Frohnen, Multicultural Rights? Natural Law and the Reconciliation of Universal
Norms with Particular Cultures, 52 CATH. U. L. REV. 39 (2002); see also Lloyd L. Weinreb,
Natural Law and Rights, in NATURAL LAW THEORY: CONTEMPORARY ESSAYS 278 (Robert P.
George ed., 1992); EBERHARD SCHOCKENHOFF, NATURAL LAW & HUMAN DIGNITY: UNIVERSAL
ETHICS IN AN HISTORICAL WORLD (Brian McNeil trans., Catholic Univ. of Am. Press 2003) (1996);
Charles E. Rice, Some Reasons for a Restoration of Natural Law Jurisprudence, 24 WAKE FOREST
L. REV. 539 (1989).
1
AMLR.V3I1.HELMHOLZ.FINAL.WS
2
AVE MARIA LAW REVIEW
9/16/2008 4:12:32 PM
[Vol. 3:1
today, if pressed, would probably subscribe to the views of the great
Oliver Wendell Holmes: “The jurists who believe in natural law,” he
wrote, “seem to me to be in that naïve state of mind that accepts what
has been familiar and accepted by them and their neighbors as
something that must be accepted by all men everywhere.”7 For a
lawyer, it is a daunting dictum. At least it daunts me.8 Who wants to
be a naïve generalizer? I don’t. Surely it is better to stay connected
with the world as it is than to spin out naïve fantasies.
On this account, this article will confine its attention to facts, most
of them involving history, although this may be one of those cases
where history has potential relevance to modern problems. I have
three things to report, or four if one counts a tepid conclusion. The
first deals with the place of natural law in the works of English
common lawyers between Bracton and Blackstone—roughly
speaking, from the mid-thirteenth century to the eighteenth. The
second discusses the place of natural law and human rights within the
traditions of ius commune, the amalgam of Roman and canon law
that dominated legal education and much legal thought during the
Middle Ages and even into the modern period. Its attempt is to
describe the role that natural law played as a source of rights in the
learned law of earlier centuries. The third considers English case law,
making a connection between the first two subjects. The question in it
is whether there is anything to be gained by looking at English cases
involving human rights through the lens of natural law. There may
be, although how far to push the argument is a more debatable
question. As I have said—my intention is to stick as close as possible
to facts.
ENGLISH LAWYERS FROM BRACTON TO BLACKSTONE
The first of these three subjects has cost me the most pain, but has
also given me the greatest pleasure. It has required attempting to
discover the extent to which Holmes’s negative attitude towards
7. OLIVER WENDELL HOLMES, Natural Law, in COLLECTED LEGAL PAPERS 310, 312 (1920);
see also JOHN CHIPMAN GRAY, THE NATURE AND SOURCES OF THE LAW 309 (Macmillan 2d ed.
1921) (1909) (describing natural law as “this exploded superstition”).
8. Not so daunted, however, have been many others. See, e.g., Symposium, Law and
Culture, 1 AVE MARIA L. REV. 1 (2003) (the founding volume of this journal including articles by
Francis Cardinal George, Robert H. Bork, Stephen F. Smith, Sherman J. Clark, Charles E. Rice,
Stephen B. Presser, James Gordley, and Robert John Araujo).
AMLR.V3I1.HELMHOLZ.FINAL.WS
Spring 2005]
9/16/2008 4:12:32 PM
NATURAL LAW
3
natural law was shared by the common lawyers of past centuries. I
asked this question: Have they been similarly suspicious of the claims
of natural law and natural rights? Perhaps not quite as suspicious as
Justice Holmes was. Open criticism might have involved them in
hostility towards the Church. At least it would have been contrary to
the great currents of medieval thought. Few men would have chosen
to take that public position in earlier centuries, at least if they meant
to succeed at the Bar. But still, they might simply have ignored the
subject of natural law without incurring anyone’s wrath. They might
easily have said nothing whatsoever about it in describing English
law. That would have been costless. Saying nothing is certainly the
most common reaction among modern legal historians writing about
the history of the common law. In their work, one finds only the
slightest mention of natural law, if indeed one finds even that. Roscoe
Pound spoke for many when he dismissed it out of hand, concluding,
“English lawyers have never had much concern with philosophy and
natural law found little place in their books.”9
Let us look at the evidence. Some of it supports the exact opposite
of Pound’s dismissal of natural law. For example, no fewer than nine
9. ROSCOE POUND, THE DEVELOPMENT OF CONSTITUTIONAL GUARANTEES OF LIBERTY 74
(1957); see also J. H. BAKER, AN INTRODUCTION TO ENGLISH LEGAL HISTORY 210 (4th ed. 2002)
(describing St. German’s use of the natural law, which he believed voided all laws contrary to it,
as akin to “abstract statements” which “bore little fruit in the practice of the courts”); C. H. S.
FIFOOT, HISTORY AND SOURCES OF THE COMMON LAW 300-01 (1949) (asserting that by the late
fifteenth century the common lawyers “would not stomach the vague promptings of Natural
Law”); SIR DAVID LINDSAY KEIR, THE CONSTITUTIONAL HISTORY OF MODERN BRITAIN 295 (8th ed.
1966) (“[N]atural human rights, although assumed as an element in the fashionable
contractualist theory of government . . . possessed little practical importance.”). There is no
entry at all under “natural law” or “law of nature” in the index of the following works on the
history of the common law: ARTHUR R. HOGUE, ORIGINS OF THE COMMON LAW (1966); W. S.
HOLDSWORTH, SOURCES AND LITERATURE OF ENGLISH LAW (1925); OLIVER WENDELL HOLMES,
THE COMMON LAW (1881), reprinted in THE COMMON LAW & OTHER WRITINGS (Neill H. Alford,
Jr. et al. eds., 1982); JOHN HUDSON, THE FORMATION OF THE ENGLISH COMMON LAW: LAW AND
SOCIETY IN ENGLAND FROM THE NORMAN CONQUEST TO MAGNA CARTA (1996); EDWARD JENKS, A
SHORT HISTORY OF ENGLISH LAW: FROM THE EARLIEST OF TIMES TO THE END OF THE YEAR 1933
(new issue 1934); F. W. MAITLAND, THE CONSTITUTIONAL HISTORY OF ENGLAND (photo. reprint
2001) (1908); S. F. C. MILSOM, HISTORICAL FOUNDATIONS OF THE COMMON LAW (2d ed. 1981);
THEODORE F. T. PLUCKNETT, A CONCISE HISTORY OF THE COMMON LAW (Little, Brown and Co.
5th ed. 1956) (1929); J. G. A. POCOCK, THE ANCIENT CONSTITUTION AND THE FEUDAL LAW: A
STUDY OF HISTORICAL THOUGHT IN THE SEVENTEENTH CENTURY (2d ed. 1987); JOHN REEVES,
HISTORY OF THE ENGLISH LAW FROM THE TIME OF THE SAXONS TO THE END OF THE REIGN OF PHILIP
AND MARY (Augustus M. Kelley Publishers 1969) (1787); JAMES FITZJAMES STEPHEN, A HISTORY
OF THE CRIMINAL LAW OF ENGLAND (London, Macmillan 1883); RICHARD S. TOMPSON, ISLANDS
OF LAW: A LEGAL HISTORY OF THE BRITISH ISLES (2000); R. C. VAN CAENEGEM, THE BIRTH OF THE
ENGLISH COMMON LAW (2d ed. 1988).
AMLR.V3I1.HELMHOLZ.FINAL.WS
4
AVE MARIA LAW REVIEW
9/16/2008 4:12:32 PM
[Vol. 3:1
Latin editions and seven English translations of Samuel Pufendorf’s
most famous work dealing with natural law were published in
England between 1682 and 1758.10 But suppose we stick to English
lawyers. Let them be our test. One must first determine who counts
as an English lawyer. I have taken a hard-nosed approach. I have
omitted the English civilians, the lawyers who practiced in the courts
of Admiralty, the Church, and many courts of Equity, when they
turned their pens to general descriptions of English law. Their
ordinary sources of authority were those of the European ius
commune, so that by training and inclination, they naturally
conceded legitimate authority to the law of nature.11 For present
purposes, therefore, John Cowell (d. 1611),12 Richard Zouche (d.
1661),13 and Thomas Wood (d. 1722),14 do not count, although they
most certainly did link natural law with what they called the
municipal law of the realm and we the English common law. I have
also excluded theologians and philosophers, though perhaps unfairly,
as not sufficiently legal in profession and outlook. On this slim
ground, influential thinkers like Richard Hooker (d. 1600), Thomas
Hobbes (d. 1679), and John Locke (d. 1704), all of whom had
something to say about natural law, are ignored in this account.
Even with these self-denying restrictions, a largish field remains
to be surveyed.15 Having made that survey, I concluded that some
10. SAMUEL PUFENDORF, DE OFFICIO HOMINIS ET CIVIS IUXTA LEGEM NATURALEM [ON THE
DUTY OF THE MAN AND CITIZEN ACCORDING TO THE NATURAL LAW] (London 1673). For the
history of publication of the editions, see Klaus Luig, Zur Verbreitung des Naturrechts in
Europa [To the Spreading of the Natural Law in Europe], 40 TIJDSCHRIFT VOOR
RECHTSGESCHIEDENIS [THE LEGAL HISTORY REVIEW] 539, 548-57 (1972); HANS THIEME, DAS
NATURRECHT UND DIE EUROPÄISCHE PRIVATRECHTSGESCHICHTE [THE NATURAL LAW AND THE
HISTORY OF EUROPEAN CIVIL LAW] 32-38 (Verlag Von Helbing & Lichtenhahn 2d ed. 1954).
11. GLENN BURGESS, THE POLITICS OF THE ANCIENT CONSTITUTION: AN INTRODUCTION TO
ENGLISH POLITICAL THOUGHT, 1603-1642, at 122-30 (1993).
12. Author of INSTITUTIONES IURIS ANGLICANI [THE INSTITUTIONS OF ENGLISH LAW] (1630).
13. Author of ELEMENTA JURISPRUDENTIAE [THE ELEMENTS OF JURISPRUDENCE] (1629).
14. Author of INSTITUTE OF THE LAWS OF ENGLAND (1720).
15. Among the common lawyers themselves, I think we cannot expect any information,
pro or con, about the place of natural law in England from compilers of books of entries and
registers of writs. Their subjects did not lend themselves to treatment of any sources of law save
those drawn immediately from court practice. Indeed, similar works from the world of the ius
commune said nothing at all about the law of nature. Therefore, English lawyers like Ralph
Hengham (d. 1311), author of RADULPHI DE HENGHAM SUMMAE, 1-50 (William Dunham ed.,
1932); John Perkins (d. 1545), author of A PROFITABLE BOOK (1555) (devoted largely to
conveyancing); and John Lilly (18th century), compiler of the collection known as MODERN
ENTRIES (1723), have not been investigated. We do not know what they thought.
AMLR.V3I1.HELMHOLZ.FINAL.WS
Spring 2005]
9/16/2008 4:12:32 PM
NATURAL LAW
5
support can be found for the view that natural law played virtually
no role in the thinking of common lawyers. The record did not
produce any lawyer who spoke disparagingly about natural law, as
Holmes did, but there were in fact common lawyers who wrote in a
general way about English law and ignored the law of nature entirely.
Among them, at least tentatively, I would put Sir Francis Buller (d.
1800),16 Sir William Scroggs (d. 1683),17 probably Samuel Carter (d.
1713),18 and Sir Richard Hutton (d. 1639).19
However, the weight on the other side of the balance is a good
deal heavier. A list of English common lawyers who described the
natural law as being either part of, or else a legitimate source for, the
English common law, from the time of Bracton in the thirteenth
century to that of Blackstone in the eighteenth, is much longer.
Bracton and Blackstone themselves are on it, of course. Bracton was
half a civilian and Blackstone perhaps a fifth.20 But they had lots of
company among those who were not. The list of common law jurists
who wrote positively about the law of nature as it figured in the law
of England includes Sir Francis Ashley (d. 1635),21 Sir Francis Bacon
16. Author of INTRODUCTION TO THE LAW RELATIVE TO TRIALS AT NISI PRIUS (1772).
17. Author of PRACTICE OF COURTS-LEET AND COURTS-BARON (1701).
18. See SAMUEL CARTER, LEX VADIORUM: THE LAW OF MORTGAGES (1706) (accessed by the
author). However, he stated that “in natural Justice and Equity” the interest of a mortgagee was
to money rather than the land. Id. at 6. But see SAMUEL CARTER, LEX CUSTUMARIA: OR, A
TREATISE OF COPY-HOLD ESTATES (London 1696), microformed on EARLY ENGLISH BOOKS, 16411700, at 841:15 (Univ. Microfilms Int’l). His treatment of the law of custom here does not
mention the law of nature.
19. See RICHARD HUTTON, THE DIARY OF SIR RICHARD HUTTON, 1614-1639, at 120 n.2 (W.R.
Prest ed., 1991) (substituting “law of the realme” for “law of reason” found in the Dialogues of
Christopher St. German, which he was following) (original spelling).
20. 2 HENRY DE BRACTON, ON THE LAWS AND CUSTOMS OF ENGLAND 26 (George E.
Woodbine ed., Samuel E. Thorne trans., 1968) (containing a section entitled Quid sit ius
naturale : What natural law is); 1 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF
ENGLAND 38-44 (Oxford, Clarendon Press 1765) (commenting on the nature of laws). This article
takes no position on the controversial question of whether Henry of Bracton was the author of
the treatise that goes under his name. See Samuel E. Thorne, Translator’s Preface to 3 HENRY DE
BRACTON, ON THE LAWS AND CUSTOMS OF ENGLAND at v, v-vi (George E. Woodbine ed., Samuel
E. Thorne trans., 1977). See generally J. L. Barton, The Mystery of Bracton, 14 J. LEGAL HIST. 1
(1993). On Blackstone, see DAVID LIEBERMAN, THE PROVINCE OF LEGISLATION DETERMINED:
LEGAL THEORY IN EIGHTEENTH-CENTURY BRITAIN 40-55 (1989); WERNER TEUBNER, KODIFIKATION
UND RECHTSREFORM IN ENGLAND [CODIFICATION AND LEGAL REFORM IN ENGLAND] 68-73 (1974);
Albert W. Alschuler, Rediscovering Blackstone, 145 U. PA. L. REV. 1 (1996); Joseph W. McKnight,
Blackstone, Quasi-Jurisprudent, 13 SW. L.J. 399 (1959).
21. Law Lectures on the Liberty of the Subject, 1616, British Library, London, Harl. MS.
4841, f. 47 (“le ley de nature, customes et statutes sont le matter et forme dont nostre ley”:
AMLR.V3I1.HELMHOLZ.FINAL.WS
6
AVE MARIA LAW REVIEW
9/16/2008 4:12:32 PM
[Vol. 3:1
(d. 1626),22 Matthew Bacon (d.c. 1759),23 Henry Ballow (d. 1782),24
Daines Barrington (d. 1800),25 William Bohun (fl. 1732),26 Britton (fl.
1300),27 John Brydall (d.c. 1705),28 Robert Callis (d. 1642),29 Sir Charles
Calthrope (d. 1616),30 William Cawley (fl. 1680),31 Sir Edward Coke
natural law, customs, and statutes are the matter and form of our law) (accessed by the author at
the British Library).
22. FRANCIS BACON, Case of the Post-Nati, in 2 THE WORKS OF FRANCIS BACON, LORD
CHANCELLOR OF ENGLAND 169 (Basil Montagu ed., Philadelphia 1854) (“[A]s the common law is
more worthy than statute law, so the law of nature is more worthy than them both.”) (accessed
by the author). But see DANIEL R. COQUILLETTE, FRANCIS BACON 288-91 (1992), for a more
negative characterization.
23. MATTHEW BACON, THE COMPLEAT ARBITRATOR: OR, THE LAW OF AWARDS 29 (London,
Henry Lintot 2d ed. 1744) (voiding bonds to marry entered into under compulsion because “it is
so agreeable to the Laws of Reason and the Laws of God, that Marriage should proceed from a
free Choice”).
24. HENRY BALLOW, A TREATISE OF EQUITY 2 (London, E. & R. Nutt, & R. Gosling 1737)
(describing the foundation of all laws as “natural Justice and Equity,” and stating that it
“corrects and controls them when they do amiss”); see also D. J. IBBETSON, A HISTORICAL
INTRODUCTION TO THE LAW OF OBLIGATIONS 216-19 (1999).
25. DAINES BARRINGTON, OBSERVATIONS ON THE MORE ANCIENT STATUTES 559 (London, W.
Bowyer & J. Nichols 4th ed. 1775) (stating that “natural justice” requires interested parties to be
given an opportunity of defending their interests).
26. WILLIAM BOHUN, THE ENGLISH LAWYER: SHEWING THE NATURE AND FORMS OF
ORIGINAL WRITS, PROCESSES AND MANDATES, OF THE COURTS AT WESTMINSTER 161 (London, E. &
R. Nutt, & R. Gosling 1732) (“The Common Law herein imitating the Law of Nature, preserving
its Vigour by Rotation and Circuity.”). But see WILLIAM BOHUN, INSTITUTIO LEGALIS: OR, AN
INTRODUCTION TO THE STUDY AND PRACTICE OF THE LAWS OF ENGLAND, AS NOW REGULATED AND
AMENDED BY SEVERAL LATE STATUTES 33-35 (London, R & E Atkyns 1708) (mentioning only the
general common law, local custom, statute law, and decided cases, which he described as
responsa prudentium).
27. 1 BRITTON: AN ENGLISH TRANSLATION AND NOTES 194 (Francis Morgan Nichols ed. &
trans., London, Clarendon Press 1865) (comparing the law of nature with institution of slavery
by the constitution of nations).
28. JOHN BRYDALL, ENCHIRIDION LEGUM: A DISCOURSE CONCERNING THE BEGINNINGS,
NATURE, DIFFERENCE, PROGRESS AND USE, OF LAWS IN GENERAL; AND IN PARTICULAR, OF THE
COMMON AND MUNICIPAL LAWS OF ENGLAND 10 (London, Elizabeth Flesher et al. 1673) (“The
Law of Nature, is next to the Divine Law, in excellency, antiquity, immutability, and
severity . . . .”).
29. ROBERT CALLIS, THE READING OF THE FAMOUS AND LEARNED ROBERT CALLIS, ESQ. UPON
THE STATUTE OF 23 H.8. CAP.5 OF SEWERS 24 (London, M. Flesher 2d ed. 1685) (“And the Laws of
this Realm . . . have fetched their Pedigree from the Law of Nature.”).
30. See his Short treatise or Lectura Of Copieholds, Cheatham’s Library, Manchester, MSS.
A.2.23, f. 52, and A.3.99, first 13 folios (describing custom as being “allowed by the lawes of God,
the lawes of nature, the lawe of nations, and by the private lawes of everye countrye”) (original
spelling) (accessed by the author at Cheatham’s Library).
31. 5 Eliz. c. 1, § 14, reprinted in WILLIAM CAWLEY, THE LAWS OF Q. ELIZABETH, K. JAMES
AND K. CHARLES THE FIRST: CONCERNING JESUITES, SEMINARY PRIESTS, RECUSANTS, &C., AND
CONCERNING THE OATHS OF SUPREMACY AND ALLEGIANCE EXPLAINED BY DIVERS JUDGMENTS AND
AMLR.V3I1.HELMHOLZ.FINAL.WS
Spring 2005]
9/16/2008 4:12:32 PM
NATURAL LAW
7
(d. 1634),32 Michael Dalton (d. 1644),33 Sir John Davies (d. 1626),34 Sir
John Doderidge (d. 1628),35 Sir William Dugdale (d. 1686),36
Thomas Egerton, Lord Ellesmere (d. 1617),37 Sir Robert Filmer
(d. 1653),38 Heneage Finch, Lord Nottingham (d. 1682),39 Sir
RESOLUTIONS OF THE REVEREND JUDGES 47 (London, J. Wright & R. Chriswell 1680), microformed
on EARLY ENGLISH BOOKS, 1641-1700, at 134:8 (Univ. Microfilms Int’l) (commenting on the
forementioned statute, that “the party attained [arrested] was still under that Protection which
the Law of Nature giveth to the King, which he explains to be such a Protection as a person
attainted of Felony or Treason is under . . . so that if any man had killed him without Warrant,
he should have been punished by Law as a manslayer: And this sort of Protection by the Law of
Nature . . . is indelebilis & immutabilis, which the Parliament could not take away”) (original
spelling).
32. 1 J. H. THOMAS, SYSTEMATIC ARRANGEMENT OF LORD COKE’S FIRST INSTITUTE OF THE
LAWS OF ENGLAND (photo. reprint, Hein 1986) (1836) (listing the Law of Nature as one of the
“divers Laws within the realm of England”) (original spelling); see also ALLEN D. BOYER, SIR
EDWARD COKE AND THE ELIZABETHAN AGE 85-87 (2003) (containing a more cautious
characterization); J. W. TUBBS, THE COMMON LAW MIND: MEDIEVAL AND EARLY MODERN
CONCEPTIONS 163-65 (2000); Harold J. Berman, The Origins of Historical Jurisprudence: Coke,
Selden, Hale, 103 YALE L.J. 1651, 1691-93 (1994).
33. MICHAEL DALTON, COUNTREY JUSTICE 1 (P. R. Glazebrook ed., Professional Books Ltd.
1973) (1618), (speaking of the common laws as “receiuing principally their Groundes from the
Lawes of God, and Nature”) (original spelling).
34. JOHN DAVIS, Preface to LES REPORTS DES CASES & MATTERS EN LEY, RESOLVES &
ADJUDGES EN LES COURTS DEL ROY EN IRELAND [THE REPORTS OF CASES AND MATTERS IN LAW,
RESOLVED AND JUDGED IN THE COURTS OF THE KING IN IRELAND] (London, E. Flesher, J. Steater &
H. Twyford 1674), microformed on EARLY ENGLISH BOOKS, 1641-1700, at 488:2 (Univ. Microfilms
Int’l) (“Law of Nature, which is the root and touchstone of all good Laws . . . .”).
35. JOHN DODERIDGE, THE ENGLISH LAWYER: DESCRIBING A METHOD FOR THE MANAGING OF
THE LAWES OF THIS LAND 191 (photo. reprint 1973) (1631) (endorsing and giving examples of the
force of the law of nature in practice).
36. WILLIAM DUGDALE, ORIGINES JURIDICIALES: OR, HISTORICAL MEMORIALS OF THE
ENGLISH LAWS, COURTS OF JUSTICE, FORMS OF TYALL, PUNISHMENT IN CASES CRIMINAL, LAW
WRITERS, LAW BOOKS, GRANTS AND SETTLEMENTS OF ESTATES, DEGREE OF SERJEANT, INNES OF
COURT AND CHANCERY 3 (London, F. & T. Warren 1666) (approving Sir John Fortescue’s view
that the common law was grounded upon the Law of God and the Law of Nature).
37. THOMAS LORD ELLESMERE, CERTAINE OBSERVATIONS CONCERNING THE OFFICE OF THE
LORD CHANCELLOR 111 (London, 1651) (considering cases in Chancery involving foreign
merchants to be determined secundum legem naturae).
38. ROBERT FILMER, Patriarcha: Or, the Natural Power of Kings 3 (1680), in THE FREEHOLDERS GRAND INQUEST, TOUCHING OUR SOVEREIGN LORD THE KING AND HIS PARLIAMENT § VI
(London, 1684) (considering government by kings ordained by the Scriptures, ancient practice,
and the law of nature).
39. 2 LORD NOTTINGHAM’S CHANCERY CASES 643 (1677), reprinted in 73 PUBLICATIONS OF
THE SELDEN SOC’Y 481, 484-85 (D.E.C. Yale ed. 1961) (1677) (considering the parental obligation
to provide for children under natural law used to justify the common law’s rule that title to land
descends but does not ascend).
AMLR.V3I1.HELMHOLZ.FINAL.WS
8
AVE MARIA LAW REVIEW
9/16/2008 4:12:32 PM
[Vol. 3:1
Henry Finch (d. 1625),40 Fleta (fl. 1290),41 Sir John Fortescue
(d. 1479),42 Sir Michael Foster (d. 1763),43Abraham Fraunce (d.
1592/93),44 Sir Geoffrey Gilbert (d. 1726),45 Edward Hake (d.c. 1604),46
Sir Matthew Hale (d. 1676),47 Sir Christopher Hatton (d. 1591),48
William Hawkins (d. 1750),49 Sir John Holt (d. 1710),50 Giles Jacob (d.
1744),51 David Jenkins (d. 1663),52 William Lambarde (d. 1601),53 Sir
40. HENRY FINCH, LAW: OR, A DISCOURSE THEREOF IN FOUR BOOKS, 3-4 (Augustus M. Kelly
Publishers 1969) (1759) (defining the Law of Nature as “fixed in man’s nature, which ministreth
common principles of good and evil”) (original spelling).
41. 3 FLETA, reprinted in 89 PUBLICATIONS OF THE SELDEN SOC’Y 1, 2 (H. G. Richardson & G.
O. Sayles eds. & trans., 1972) (considering the law of possession and ownership of things
acquired under natural law).
42. JOHN FORTESCUE, THE GOVERNANCE OF ENGLAND 117 (Charles Plummer ed., Lawbook
Exchange 1999) (1885) (Kings do wrong if they do “any thynge ayenst the lawe of God, or ayenst
[the] lawe off nature.”) (original spelling). He was also the author of a work devoted to the
subject, De Natura Legis Naturae, printed in SIR JOHN FORTESCUE, THE WORKS OF SIR JOHN
FORTESCUE, KNIGHT, CHIEF JUSTICE OF ENGLAND AND LORD CHANCELLOR TO KING HENRY THE
SIXTH (Thomas Lord Clermont ed., 1869) (accessed by the author). See also E. F. JACOB, SIR JOHN
FORTESCUE AND THE LAW OF NATURE (1934) (accessed by the author).
43. MICHAEL FOSTER, A REPORT OF SOME PROCEEDINGS ON THE COMMISSION FOR THE TRIAL
OF REBELS IN THE YEAR 1746, IN THE COUNTY OF SURRY 273 (Michael Dodson ed., Dublin, James
Moore 2d ed. cor. 1791) (stating that the right to plea in self-defense “in these cases [homicides
founded in necessity] is founded in the law of nature”).
44. The Lawiers Logike, Exemplifying the Praecepts of Logike by the Practice of the
Common Lawe 2 (2d prtg. 1969) (1588) (stating that law and logic “must be conformable unto
those sparkes of naturall reason . . . appearing in the monuments and disputations of excellent
authors”) (original spelling) (accessed by the author).
45. GEOFFREY GILBERT, THE LAW OF EVIDENCE 143 (London 2d ed., cor. 1760) (stating rule
against self-incrimination and adding, “in this we do certainly follow the Law of Nature”)
(accessed by the author).
46. EDWARD HAKE, EPIEIKEIA: A DIALOGUE ON EQUITY IN THREE PARTS 108 (D.E.C. Yale ed.
1953) (endorsing the view that “[i]n matters dowbtfull” courts should “resorte thereuppon to the
lawe of Nature which is reason and the grownde of all lawes”) (original spelling).
47. 1 MATTHEW HALE, HISTORIA PLACITORUM CORONÆ: THE HISTORY OF THE PLEAS OF THE
CROWN 51 (George Wilson ed., Sollom Emlyn 1778) (citing “the law of nature, and necessity” as
source of pleas of self-defense in criminal homicide cases).
48. CHRISTOPHER HATTON, A TREATISE CONCERNING STATUTES 53 (London, Richard Tonson
1677), microformed on EARLY ENGLISH BOOKS, 1641-1700, at 420:8 (Univ. Microfilms Int’l) (“for
Reason hath been so forcible against the words of Statutes, that even in the Prince’s Prerogative,
the words of Statutes have been controlled”).
49. 2 WILLIAM HAWKINS, A TREATISE OF THE PLEAS OF THE CROWN 540 (London, 8th ed.
1824) (stating that a prior royal pardon was ineffective to render lawful an act that is malum in
se “as being against the law of nature”).
50. See Philip A. Hamburger, Revolution and Judicial Review: Chief Justice Holt’s Opinion
in City of London v. Wood, 94 COLUM. L. REV. 2091-93 (1994).
51. GILES JACOB, A NEW LAW DICTIONARY (London, E. & R. Nutt, & R. Gosling 1729)
(including as part of its definition of “Law” a proposition stating “all is founded on the Law of
Nature or Reason, and the revealed law of God”) (emphasis omitted).
AMLR.V3I1.HELMHOLZ.FINAL.WS
Spring 2005]
9/16/2008 4:12:32 PM
NATURAL LAW
9
Thomas Littleton (d. 1481),54 Walter Mantell (17th century),55 Sir
Thomas More (d. 1535),56 William Murray, Lord Mansfield (d. 1793),57
Roger North (d. 1734),58 William Noy (d. 1634),59 Sir Roger Owen (d.
1617),60 Edmund Plowden (d. 1585),61 Robert Powell (fl. 1609-42),62
Charles Pratt, Lord Camden (d. 1794),63 William Prynne (d. 1669),64
52. DAVID JENKINS, THE WORKS OF THAT GRAVE AND LEARNED LAWYER JUDGE JENKINS,
PRISONER IN NEWGATE, UPON DIVERS STATUTES CONCERNING THE LIBERTY AND FREEDOME OF THE
SUBJECT 139-40 (London 1648), microformed on EARLY ENGLISH BOOKS, 1641-1700, at 108:8 (Univ.
Microfilms Int’l) (stating that the acts of Parliament against reason or repugnant or impossible to
be performed are void) (original spelling).
53. WILLIAM LAMBARDE, ARCHEION: OR, A DISCOURSE UPON THE HIGH COURTS OF JUSTICE IN
ENGLAND 55 (Charles H. McIlwain & Paul L. Ward eds., Harvard Univ. Press 1957) (1591)
(stating that the “Law of Humanitie, Reason, and Nature” has preserved mankind from the
“shipwracke” of Adam’s Fall) (emphasis omitted) (original spelling).
54. THOMAS LITTLETON, LES TENURES DU MONSIEUR LITTLETON, cc. 209, 212 (London 1581),
46-47 (stating the prescriptive usage “si ceo soit encounter reason ceo ne doit ester allowe devant
Judges”: if it is to encounter reason it is not to be allowed in front of Judges) (accessed by the
author).
55. WALTER MANTELL, A SHORT TREATISE OF THE LAWES OF ENGLAND WITH THE
JURISDICTION OF THE HIGH COURT OF PARLIAMENT, WITH THE LIBERTIES AND FREEDOMES OF THE
SUBJECTS 9-10 (London, Richard Cotes 1644) (“You shall understand that all humane lawes are
either the law of Nature, or Customes, or Statutes.”) (original spelling).
56. THOMAS MORE, A Dialogue Concerning Heresies, in 6 THE COMPLETE WORKS OF ST.
THOMAS MORE 414-15 (Thomas M. C. Lawler et al. eds., 1981) (“nature / reason / and goddys
byheste byndeth”) (original spelling).
57. LORD MANSFIELD ET AL., Letter the Fourth, in TREATISE ON THE STUDY OF THE LAW
(London, Harrison, Cluse, and Co. 1797), reprinted in 26 CLASSICS IN LEGAL HISTORY 49 (Roy M.
Mersky & J. Myron Jacobstein eds., 1974) (making a recommendation to study “the law of
nations, which is partly founded on the law of nature, and partly positive”).
58. ROGER NORTH, A DISCOURSE OF THE POOR 19-20 (London 1753) (citing Cicero
approvingly, for the proposition that reason was a foundation of law and that an Act of
Parliament without reason was “void, as being contrary to a Principle of Justice”).
59. WILLIAM NOY, THE GROUNDS AND MAXIMS, AND ALSO AN ANALYSIS OF THE ENGLISH
LAWS 13 (Charles Barton ed., London 7th ed. 1808) (1641).
60. HISTORY OF THE COMMON LAW, British Library, London, Harl. MS. 1572, fols. 11v-12
(discussing the role of “a natural instinct” implanted in every creature by “the God of nature”)
(accessed by the author at the British Library).
61. EDMUND PLOWDEN, THE COMMENTARIES *304 (“[W]e ought not to think that the
Founders of our Law were remiss in searching after the Law of Nature, or that they were
ignorant of it.”) (citing Sharington v. Strotton, 75 Eng. Rep. 454 (Q.B. 1565)).
62. ROBERT POWELL, An Explanation of the Ancient Oath of Legeance, in A TREATISE OF THE
ANTIQUITY, AUTHORITY, USES AND JURISDICTION OF THE ANCIENT COURTS OF LEET, OR VIEW OF
FRANCK-PLEDGE AND OF SUBORDINATION OF GOVERNMENT DERIVED FROM THE INSTITUTION OF
MOSES, THE FIRST LEGISLATOR 169, 169-71 (London, R. B. 1641), microformed on EARLY ENGLISH
BOOKS, 1641-1700, at 1676:9 (Univ. Microfilms Int’l) (stating that allegiance and duty to the
prince “are part of the Law of Nature, whereto all Nations have consented”) (original spelling).
63. See ERNEST BARKER, Natural Law and the American Revolution, in TRADITIONS OF
CIVILITY: EIGHT ESSAYS 263, 317 (Archon Books 1967) (1948) (quoting an appeal made by Lord
AMLR.V3I1.HELMHOLZ.FINAL.WS
10
AVE MARIA LAW REVIEW
9/16/2008 4:12:32 PM
[Vol. 3:1
Ferdinando Pulton (d. 1618),65 Francis Rodes (d. 1589),66 Christopher
St. German (d. 1540),67 John Selden (d. 1654),68 William Sheppard (d.
1674),69 John Somers (d. 1716),70 Sir Henry Spelman (d. 1641),71 Sir
William Staunford (d. 1558),72 William Styles (d. 1679),73 Sir John
Vaughan (d. 1674),74 William West (d. 1598),75 Bulstrode Whitelocke
Camden in the House of Lords in 1766, on behalf of the American colonists, to “the natural law
of mankind and the immutable laws of justice”).
64. WILLIAM PRYNNE, BRIEF ANIMADVERSIONS ON, AMENDMENTS OF, & ADDITIONAL
EXPLANATORY RECORDS TO, THE FOURTH PART OF THE INSTITUTES OF THE LAWES OF ENGLAND,
CONCERNING THE JURISDICTION OF THE COURTS 97 (London, Thomas Ratcliffe & Thomas Daniel
1669), microformed on EARLY ENGLISH BOOKS, 1641-1700, at 222:15 (Univ. Microfilms Int’l)
(“Because the Law (guided by nature and reason) cannot feign or allow things that are against
nature, reason, nor admit of fictions that are contradictory to each other, yea false and
impossible . . . .”) (emphasis omitted) (original spelling).
65. FERDINANDO PULTON, Preface to DE PACE REGIS ET REGNI [ON THE PEACE OF KING AND
KINGDOM] (London, Companie of Stationers 1609) (stating the need for specific criminal laws to
augment “the lawes of God, of nature, or reason”) (original spelling).
66. Francis Rodes, Preface to Reading on Visus Francplegii (1976), described in J. H. Baker,
Rodes, in NEW DICTIONARY OF NATIONAL BIOGRAPHY (2004) (preface on relevance of the law of
nature to English law) (accessed by the author).
67. CHRISTOPHER ST. GERMAN, ST. GERMAN’S DOCTOR AND STUDENT, in 91 PUBLICATIONS OF
THE SELDEN SOC’Y 13 (T. F. T. Plucknett & J. L. Barton eds., 1974) (“And this law ought to be kept
as well among Jewes and gentyles as amonge crysten men. And this is the law which among the
learned in English law is called the law of reason.”) (original spelling).
68. JOHN SELDEN, TABLE TALK OF JOHN SELDEN 69-70 (Sir Fredrick Pollock ed., Quaritch
1927) (1689) (discussing God as the ultimate source of the law of nature). Selden was also author
of a treatise on the subject: De Jure Naturali et Gentium Juxta Disciplinam Ebaeorum (1640).
69. See NANCY L. MATTHEWS, WILLIAM SHEPPARD: CROMWELL’S LAW REFORMER 5 (1984)
(citing WILLIAM SHEPPARD, AN EPITOME OF ALL THE COMMON AND STATUTE LAWS OF THIS
NATION, NOW IN FORCE 683 (London 1656), microformed on EARLY ENGLISH BOOKS, 1641-1700,
at 849:17 (Univ. Microfilms Int’l) (“[Common custom] is founded especially upon certain
Principles or Maxims made out of the Law of God, and the Law of Reason.”)).
70. JOHN SOMERS, JURA POPULI ANGLICANI: OR, THE SUBJECT’S RIGHT OF PETITIONING SET
FORTH 30-31 (London 1701) (discussing the right of the people to petition the government for
redress of grievances founded on the law of nature); see also Hamburger, supra note 50, at 2102.
71. HENRY SPELMAN, Larger Work on Tythes, in THE ENGLISH WORKS OF SIR HENRY
SPELMAN 110-11 (Edmund Gibson ed., 2d ed. 1727) (discussing the Law of Nature as source of
legal obligations to give offerings to God and, by implication, to the clergy) (accessed by the
author).
72. WILLIAM STAUNFORD, LES PLEES DEL CORON [THE PLEAS OF THE CROWN] 53-54 (P. R.
Glazebrook ed., Prof’l Books photo. reprint 1971) (1557) (containing a section entitled De Justice
using language taken from civil law sources based on the law of nature to describe the character
of English justice).
73. WILLIAM STYLE, STYLES’S PRACTICAL REGISTER 395 (4th ed. 1707) (“For the Common
Law is not contradictory in any thing to the Law of Nature, but agrees with it in all things . . . .”).
74. Harrison v. Doctor Burwell (CP 1670), in SIR JOHN VAUGHAN, THE REPORTS AND
ARGUMENTS OF THAT LEARNED JUDGE SIR JOHN VAUGHAN 226-27 (London, Thomas Roycrost
1677) (defining transgressions when men “violate Laws coeval with their original being” and
AMLR.V3I1.HELMHOLZ.FINAL.WS
Spring 2005]
9/16/2008 4:12:32 PM
NATURAL LAW
11
(d. 1675),76 Thomas Williams (d. 1566),77 Edmund Wingate (d. 1656),78
Edward Wynne (d. 1784),79 and lastly (although out of order)
Anonymous.80 The list is long, and no doubt could be made longer.
But wait! The length of the list should not overwhelm us. It
should not even convince us that natural law was often on the mind
of common lawyers, although the list does seem substantial enough to
show that Holmes’s dismissive view of natural law was not shared by
many of them.81 On the contrary, they seem to have accepted it as a
component part of the laws of England. They did not regard it as an
exotic foreign import, but rather as a legitimate source of English law.
At the same time, closer examination shows considerable variation in
how much attention these English lawyers devoted to natural law.
Some of them mentioned it in a quite superficial way, usually only at
the start of a treatise. William Sheppard is an example.82 His many
works on specific subjects like deeds or libel and slander made
minimal use of ideas taken from the traditions of the ius commune.
Others, however, went farther into the available learning. They
referring to Selden’s treatment of natural law as “given in the beginning to all Mankind”)
(original spelling); see also J. Gwynn Williams, Sir John Vaughan of Trawscoed, 8 NAT’L LIBRARY
OF WALES J. 121, 140-41 (1953).
75. WILLIAM WEST, Of the Chancery § 2, in 2 SYMBOLEOGRAPHY 174 (London, Miles Flesher
& Robert Young 1641) (giving examples of general rules given “by the Law of Nature itself,
better and more rightfull cannot be given”) (citation omitted) (original spelling).
76. BULSTRODE WHITELOCKE, ESSAYS ECCLESIASTICAL AND CIVIL (London 1706) (writing in
defense of liberty of conscience in religious matters: “Law of Reason is to do things as near as we
can like unto God”) (accessed by the author).
77. THOMAS WILLIAMS, THE EXCELLENCY AND PRÆHEMINENCE OF THE LAW OF ENGLAND 9
(London, R. & E. Atkins 1680), microformed on EARLY ENGLISH BOOKS, 1641-1700, at 481:5 (Univ.
Microfilms Int’l) (“the Law of Nature, which is the Parent of all good Lawes in the World”)
(original spelling).
78. EDMUND WINGATE, Preface to THE BODY OF THE COMMON LAW OF ENGLAND (London,
R. & W. Leybourne 1655), microformed on EARLY ENGLISH BOOKS, 1641-1700, at 1493:22 (Univ.
Microfilms Int’l) (asserting that the common laws of England are “subject to be altered by two
other Laws, viz. the Statute-law, and the Law of Reason”) (emphasis omitted).
79. 1 EDWARD WYNNE, EUNOMUS: OR, DIALOGUES CONCERNING THE LAW AND
CONSTITUTION OF ENGLAND, 69, Dial. I § 17 (London, 2d ed. 1785) (“The law of nature not only
should be studied as the ground of the great and fundamental laws in all societies, but because
the state of nature itself does still subsist in many respects.”).
80. TRACT ON LAW AND ESPECIALLY THE LAW OF ENGLAND, British Library, London, Stowe
MS. 159, fols. 303v-04 (describing the Lawe of Reason as “written in the hartes of all men”)
(original spelling) (accessed by the author at the British Library).
81. See WILLIAM M. WIECEK, THE LOST WORLD OF CLASSICAL LEGAL THOUGHT: LAW AND
IDEOLOGY IN AMERICA, 1886-1937, at 20 (1998) (stating that the English view of natural law was
carried over to America).
82. See supra note 69 and accompanying text.
AMLR.V3I1.HELMHOLZ.FINAL.WS
AVE MARIA LAW REVIEW
12
9/16/2008 4:12:32 PM
[Vol. 3:1
divided natural law into its two primary aspects and at greater length
entered into the task of describing its precepts and limitations.
Christopher St. German is an example.83 Natural law served as a
frequent starting point for his analysis of English law. Still others
endorsed it and went on to provide examples of how its precepts
were expressed in rules and maxims of the common law. Sir John
Doderidge is an example.84 It served his purposes.
One other notable feature worth mentioning arises from
examining the lawyers on the list. Several of them made the useful
observation that they and other English common lawyers did not
customarily use the terms “Law of Nature” or “Natural Law” in so
many words. Instead they looked to what “reason” dictated or what
would avoid “inconvenience” in practice, thereby applying the same
general principles as did the civilians who expressly cited natural
law.85 The words were different, but the substance was not. That
attitude is evident in vocabulary used in many of the English cases.
What about these cases? Aren’t they what count? And what do
they say? Enough of the anemic and abstract legal theories these
English lawyers added to their treatises. What about the cases, where
the heart of the common law lay—and beat? I do want to come to the
case law, but before doing so we must stop for a moment, or maybe
more than a moment, to understand the role natural law was
supposed to play in the adjudication of disputes. This question is
particularly important in understanding the protection it offered to
human rights, which is the second subject of this article.
NATURAL LAW AND HUMAN RIGHTS IN THE IUS COMMUNE
Four points need to be made under the heading of natural law and
human rights in the European legal tradition. First, no one can doubt
that the concept of a human right occupied a place in the thought of
jurists attached to natural law traditions. Englishmen made the
connection,86 and so as a matter of course did the jurists who wrote
83.
84.
85.
See supra note 67 and accompanying text.
See supra note 35 and accompanying text.
See, e.g., ST. GERMAN, supra note 67, at 32-39.
For further examples, see JAMES
GORDLEY, THE PHILOSOPHICAL ORIGINS OF MODERN CONTRACT DOCTRINE 149-51 (1991).
86. See, e.g., GRANVILLE SHARP, A DECLARATION OF THE PEOPLE’S NATURAL RIGHT TO A
SHARE IN THE LEGISLATURE 17 (l774) (stating that the right of representation of the people is
shown by “the first maxims or principles of reason”).
AMLR.V3I1.HELMHOLZ.FINAL.WS
Spring 2005]
9/16/2008 4:12:32 PM
NATURAL LAW
13
about the ius commune. Charles Reid’s book, which appeared in
print just recently, shows this with clarity and detail.87 Its subtitle is
Rights and Domestic Relations in Medieval Canon Law, and it has the
merit of showing how ubiquitous fundamental rights were in a vital
part of the medieval law.88 The nature and scope of the rights
recognized in the medieval Roman and canon laws were not identical
with the fundamental human rights we today recognize under the
American Constitution or the European Convention on Human
Rights.89 As much has changed as has remained the same. It is
nonetheless fair to take it as established that the legal world where the
tenets of natural law were taken seriously was one that recognized the
existence of human rights.
Second, this tradition contains emphatic statements that any
statute, law, or custom that ran contrary to the law of nature was not a
binding law. The commentators assumed that all good positive laws
“grew out of” or were “emanations” of the law of nature. Statutes
should add sanctions and specificity, but their purpose and substance
should not deviate from natural law. Hence it followed that if a
particular enactment or custom contradicted the law of nature,
something must have gone wrong. Gratian’s Decretum (c. 1140) and
its ordinary gloss stated the basic principles. A custom of the people,
if an obstacle to reason and truth, cannot be accepted as law.90
Similarly, a statute that contradicted a fundamental principle of
87. CHARLES J. REID, JR., POWER OVER THE BODY, EQUALITY IN THE FAMILY: RIGHTS AND
DOMESTIC RELATIONS IN MEDIEVAL CANON LAW (2004); see also Charles J. Reid, Jr., The
Canonistic Contribution to the Western Rights Tradition, 33 B.C. L. REV. 37 (1991).
88. See also BRIAN TIERNEY, THE IDEA OF NATURAL RIGHTS: STUDIES ON NATURAL RIGHTS,
NATURAL LAW AND CHURCH LAW, 1150-1625 (1997); RICHARD TUCK, NATURAL RIGHTS THEORIES:
THEIR ORIGIN AND DEVELOPMENT (1979); HEINZ-JÜRGEN BÖHME, POLITISCHE RECHTE DES
EINZELNEN IN DER NATURRECHTSLEHRE DES 18. JAHRHUNDERTS UND IN DER STAATSTHEORIE DES
FRÜHKONSTITUTIONALISMUS [POLITICAL RIGHTS PARTICULARLY IN THE NATURAL LAW DOCTRINE
OF THE EIGHTEENTH CENTURY AND THE STATE THEORY OF EARLY CONSTITUTIONALISM] (1993);
ARTHUR P. MONAHAN, FROM PERSONAL DUTIES TOWARDS PERSONAL RIGHTS: LATE MEDIEVAL
AND EARLY MODERN POLITICAL THOUGHT, 1300-1600 (1994); JOHN T. NOONAN, JR., Human
Rights and Canon Law, in CANONS AND CANONISTS IN CONTEXT 339 (1997); KENNETH
PENNINGTON, THE PRINCE AND THE LAW, 1200-1600: SOVEREIGNTY AND RIGHTS IN THE WESTERN
LEGAL TRADITION (1993).
89. See KNUD HAAKONSSEN, NATURAL LAW AND MORAL PHILOSOPHY: FROM GROTIUS TO
THE SCOTTISH ENLIGHTENMENT 5-7 (1996). I have tried to sketch out some of the differences in
R. H. Helmholz, Natural Human Rights: The Perspective of the Ius Commune, 52 CATH. U. L.
REV. 301 (2003).
90. See D.8 c.7, reprinted in GRATIAN, THE TREATISE ON LAWS 27 (James Gordley &
Augustine Thompson trans., 1993).
AMLR.V3I1.HELMHOLZ.FINAL.WS
14
AVE MARIA LAW REVIEW
9/16/2008 4:12:32 PM
[Vol. 3:1
justice was not a true law.91 From there it was but an easy step to
conclude that the emperor, though given jurisdiction over all men,
“had no power to take away those things that were a part of the law
of nature.”92 Even the pope, though governor of Christians (and in
the view of some, even more), was subjected to limits set by natural
law.93 As Aquinas would put it, “[E]very human law [that] is
incompatible with the natural law, will not be law, but a perversion of
the law.”94 Thus, it seems, where human rights were based upon the
teachings of natural law, they enjoyed a protected status in the ius
commune. The rights to marry, to basic sustenance, and to some form
of legal due process were not rights that could be taken away.
Abridged maybe, but not entirely taken away.
Third, despite these strong statements about of the invalidity of
laws that contravened natural law, the medieval jurists did not take
what seems to us to have been the natural next step. They did not
endorse judicial review of legislation. A judge was not allowed to
“strike down” a statute that seemed to him to contradict the tenets of
natural law. To Americans, that power seems to follow inevitably
from the premise. If a custom or statute contrary to natural law is
invalid, must not a judge treat it as such? Must he not strike it down?
In light of our own constitutional history, the result seems axiomatic.
Anything less would be a denial of fundamental human rights
enshrined in our basic law.
And yet it was not so for the jurists of earlier centuries. That a
statute violated natural law did not mean that it could be declared
invalid by a judge. For this there were at least three reasons. One
was that it would have stood the right order of government on its
head.95 As Blackstone put it, “[T]hat were to set the judicial power
91. See D.5 c.1, reprinted in GRATIAN, supra note 90, at 16.
92. See, e.g., PANORMITANUS, Commentaria in LIBROS DECRETALIUM ad X 1.2.7, no. 11
(Venice 1615) (“imperatorem non posse tollere ea quae sunt de iure naturae”) (accessed by the
author).
93. E.g., D.13 c.1, reprinted in GRATIAN, supra note 90, at 49 (dealing with dispensation
from positive laws and chosing the lesser of two evils).
94. THOMAS AQUINAS, SUMMA THEOLOGICA, Part I-II, Question 95, Article 1 (Fathers of the
English Dominican Province trans., Christian Classics 1981) (1911) [hereinafter SUMMA
THEOLOGICA].
95. It was a principle of the ius commune that the lesser authority should not sit in
judgment over the greater. See, e.g., HOSTIENSIS, SUMMA AUREA, Lib. II, tit. De Iudiciis [On
Judgments], no. 5 (accessed by the author). This principle stood in the way of judicial review of
legislation. For an English expression of this view, see RICHARD WOODDESON, ELEMENTS OF
AMLR.V3I1.HELMHOLZ.FINAL.WS
Spring 2005]
9/16/2008 4:12:32 PM
NATURAL LAW
15
above that of the legislature, which would be subversive of all
government.”96 Some laws, it is true, no judge might enforce—a
statute directly against God’s commands, for example. But this was a
small group, one not often encountered. Otherwise, judicial review in
the modern sense did not exist.97 Perhaps the right of remonstrance
exercised by the French Parlements came close, but even there final
authority rested with the monarch.98 European courts might, it is
true, refuse to accept the legitimacy of laws made by other
sovereigns—the Rota Romana refusing to recognize the validity of a
secular law, or the Parlement de Paris rejecting an attempt to enforce
a canon from the Corpus iuris canonici. Sometimes the judges in
these courts said they were acting to enforce principles of natural
justice, but this was not equivalent to what we think of as judicial
review of the legislative acts of the court’s own sovereign.99 Early
jurists possessed no clear notion of separation of powers, and judges,
as subordinate officers in a commonwealth, were not vouchsafed a
right to nullify the considered acts of their governors.100
JURISPRUDENCE 81 (Dublin, H. Fitzpatrick 1792) (“[I]f [the magistrate’s] proceedings are to be
decided upon by their subjects, government and subordination cease.”).
96. 1 BLACKSTONE, supra note 20, at 91. Lord Ellesmere also observed, “[I]t is Magis
Congruum that Acts of parliament should be corrected by the same penn that drew theym,
thayn to be dasht to peeces by the opinion of a few Iudges,” quoted in LOUIS A. KNAFLA, LAW
AND POLITICS IN JACOBEAN ENGLAND: THE TRACTS OF LORD CHANCELLOR ELLESMERE 307 (1977)
(original spelling). See also VAUGHAN, supra note 74, at 38 (citing Littleton and Coke holding
that law cannot be inconvenient and unequitable, but adding that these “defects, if they happen
in the law, can only be remedied by Parliament”). The hesitation of Justice Iredell, in
disagreement with the majority’s reasoning in Calder v. Bull is instructive on this score. Calder
v. Bull, 3 U.S. (3 Dall.) 386, 398 (1798) (Iredell, J., concurring).
97. See Larry D. Kramer, Foreword: We the Court, 115 HARV. L. REV. 5, 24-27 (2001).
98. See FRANÇOIS OLIVIER-MARTIN, HISTOIRE DU DROIT FRANÇAIS DES ORIGINES À LA
RÉVOLUTION [HISTORY OF FRENCH LAW FROM ITS ORIGINS TO THE REVOLUTION] 545-47 (1948); J.
H. SHENNAN, THE PARLEMENT OF PARIS 160-64 (1968).
99. See Laurens Winkel, A Note on Regulae Iuris in Roman Law and on Dworkin’s
Distinction between Rules and Principles, in CRITICAL STUDIES IN ANCIENT LAW, COMPARATIVE
LAW AND LEGAL HISTORY 413, 416 (John W. Cairns & Olivia F. Robinson eds., 2001) (describing
the various shades of meaning given to the concept of validity); Hamburger, supra note 50, at
2092-93 (1994); Edward Corwin, The “Higher Law” Background of American Constitutional
Law, 42 HARV. L. REV. 365, 375 (1929).
100. For commentary, see Helen K. Michael, The Role of Natural Law in Early American
Constitutionalism: Did the Founders Contemplate Judicial Enforcement of “Unwritten”
Individual Rights?, 69 N.C. L. REV. 421, 427-35 (1991) (examining the writings of Grotius,
Pufendorf, Burlamaqui, and Vattel and finding no support for the theory that judges possessed
the power to declare statutes void if contrary to natural law). But see generally Suzanna Sherry,
The Founders’ Unwritten Constitution, 54 U. CHI. L. REV. 1127 (1987) (Michael wrote in response
to this article by Sherry).
AMLR.V3I1.HELMHOLZ.FINAL.WS
16
AVE MARIA LAW REVIEW
9/16/2008 4:12:32 PM
[Vol. 3:1
A further reason is that judicial invalidation of statutes was not
treated as a necessary consequence of the law of nature itself. Natural
law was not regarded as a constitution in the American sense. It had
no written text whose words could be parsed and compared to
challenged statutes. It admitted a variety of interpretations and it
allowed a range of limitations.101 Natural law might be restricted and
modified.102 Indeed, the organization of society itself compelled the
abridgement of natural rights,103 and it often happened that men did
not live in accord with nature’s plan.104
Perhaps the cleanest example of the limited effect of natural law is
slavery—cleanest because it was the most dramatic and because it is
the hardest for us to sympathize with, although several others
existed.105 Men were free by the law of nature,106 and yet everywhere
they were enslaved, kept in slavery by innumerable provisions of the
positive law. As Lord Mansfield said in Somerset’s Case, “[S]lavery is
of such a nature, that it is incapable of being introduced . . . but only
[by] positive law.”107 That had happened. For the medieval lawyers,
Roman law, filled as it was with recognitions of slavery’s existence
and legality, provided a textbook example of this uncomfortable
101. See generally Edward H. Levi, The Natural Law, Precedent, and Thurman Arnold, 24
VA. L. REV. 587 (1938). As Levi’s article suggests, it would be too strong to say that statutes were
ever thought merely “declaratory” of natural law; the law of nature was not so specific in its
dictates. Cf. Morris S. Arnold, Statutes as Judgments: The Natural Law Theory of Parliamentary
Activity in Medieval England, 126 U. PA. L. REV. 329, 329 (1977) (The term “natural law” is
embodied in the principle that “all legislation is declaratory of pre-exisiting rights” which the
author set out to demonstrate as “generally misconceived.”) (emphasis omitted).
102. See OTTO GIERKE, POLITICAL THEORIES OF THE MIDDLE AGE 76 (Frederic William
Maitland trans., 5th ed. 1987); Walter Berns, Foreword: Natural Law, Natural Rights, 61 U. CINN.
L. REV. 1, 3 (1992).
103. See, e.g., Losee v. Buchanan, 51 N.Y. 476, 484 (1873).
104. John Kroger, The Philosophical Foundations of Roman Law: Aristotle, the Stoics, and
Roman Theories of Natural Law, 2004 WIS. L. REV. 905, 930.
105. For example, it was said that a child’s right to inherit from a parent was one that a
statute or custom could diminish but, unless there was good cause, not wholly take away. See
PANORMITANUS, supra note 92, at X 3.26.16 (accessed by the author).
106. DIG. 1.1.4; J. INST. 1.3.2; DIG. 12.6.64.
107. Somerset v. Stewart, Lofft 1, 19, 98 Eng. Rep. 499, 510 (K.B. 1722).
AMLR.V3I1.HELMHOLZ.FINAL.WS
Spring 2005]
9/16/2008 4:12:32 PM
NATURAL LAW
17
position.108 Roman law recognized slavery’s reality, but at the same
time stated that it was contrary to natural law.109
How could the two be reconciled? This is not the occasion for
examining the variety of possible answers, but a couple will show
something about the relationship between human rights and the
natural law.110 The standard response to the apparent contradiction
was to assert that wars were responsible for slavery. It was
undoubtedly preferable to be alive and enslaved than to be dead and
free, and slavery was the inevitable and preferable result.111 To the
objection that the law of nature was immutable and that continuation
of slavery seemed to mock that quality, it was said that the law of
nature indeed remained true, because some men had always
remained free. The law of nature could be remitted as to some, the
jurists said, but never as to all men.112 By such forms of reasoning, a
measure of harmony between human laws and the dictates of natural
law was preserved. It left little space for judicial invalidation of
statutes permitting enslavement of human beings. And, of course,
little occurred.
A final reason that judicial invalidation of statutes did not happen
was that it was unnecessary in most instances. Much less legislation
existed in earlier centuries, of course. And when it did, other, less
dramatic, means existed to do justice and to implement the substance
of the law of nature. Judges acting within the traditions of the ius
commune enjoyed a limited, but real, autonomy to give sentences
secundum naturalem aequitatem rather than secundum rigorem
iuris.113 They interpreted statutes to avoid clashes with natural law
108. See R. Aubenas, Inconscience de juristes ou pédantisme malfaisant? Un chapitre
d’histoire juridico-sociale XIe-XVe siècle [Inattentiveness of Jurists or Pernicious Pedantry? A
Chapter from the Juridico-Social History of the 11th-15th Centuries], 56 REVUE HISTORIQUE DE
DROIT FRANÇAIS ET ÉTRANGER 215 (1978) (accessed by the author).
109. See DIG. 1.1.4.
110. See generally, e.g., John B. Killoran, Aquinas and Vitoria: Two Perspectives on Slavery,
in INTERNATIONAL CONGRESS OF MEDIEVAL STUDIES, THE MEDIEVAL TRADITION OF NATURAL LAW
87 (Harold J. Johnson ed., 1987) (finding a common foundation in Thomas Aquinas’s and
Francisco de Vitoria’s otherwise contrasting views on slavery in their “moral appraisals” of it).
111. See, e.g., J. INST. 1.3.3; DIG. 1.1.11; HUGO GROTIUS, THE RIGHTS OF WAR AND PEACE 43547 (A.C. Campbell trans., M. Walter Dunne 1901) (1625).
112. PANORMITANUS, supra note 92, at X 3.30.34 (“[I]llud ius naturale quod omnes homines
ab initio sint libri . . . immutatum est in quibusdam, sed non in omnibus; hoc enim fuit
impossible quod omnes essent servi propter naturam correlativorum.”) (accessed by the author).
113. CODE JUST. 3.1.8, DIG. 50.17.90; see also 1 ENNIO CORTESE, LA NORMA GIURIDICA [THE
LEGAL NORM] 90-93 (1962).
AMLR.V3I1.HELMHOLZ.FINAL.WS
18
AVE MARIA LAW REVIEW
9/16/2008 4:12:32 PM
[Vol. 3:1
principles.114 The possibilities inherent in this approach are perhaps
easiest to appreciate by taking the example of papal commands. It
was not easily assumed by medieval lawyers that papal statutes were
intended to work injustice. Exceptions were therefore read into
statutes precisely because jurists took it for granted that the popes had
wished to act in accordance with the principles of natural and divine
law.115 If one assumes that the sovereign wishes to have statutes read
in light of natural law, that the legislator could not have intended to
deviate from its paths, then there is rarely a need to invalidate the
statutes themselves. Their interpretation provides the way to seeing
that justice is done. It is the fact: “[I]nterpretation makes the law.”116
The absence of judicial invalidation of statutes did not mean,
therefore, that natural law played no part in the development of
human rights. Natural law came into play at several points in the ius
commune. It was a guide to the legislator, framing the objectives that
statute law ought to achieve. It filled gaps in the law, places for
which the law giver had made no provision but for which judges had
to find answers. It gave the best means of construing unclear or
“open-ended” commands from the legislator. It could determine
whether a custom among those subject to the law passed the test of
reasonability necessary to validate it. And it might even permit
individuals to ignore the commands of a statute that violated natural
law, although under quite limited circumstances. In other words,
despite the absence of judicial review of legislation by which judges
declared statutes invalid in the name of the law of nature, natural law
114. See Dr. Bonham’s Case, 8 Co. Rep. 114, 77 Eng. Rep. 646 (K.B. 1610) (the most familiar
example in the English common law). It is often cited as standing in favor of modern judicial
review, but in fact it illustrates one way in which natural law was used in the interpretation of
statutes; see also Day v. Savadge, Hob. 85, 87a, 80 Eng. Rep. 235, 237 (C.P. 1614) (stating that
“even an act of parliament, made against natural equity, as to make a man Judge in his own
cause, is void in itself, for jura naturae sunt immutabilia”); J.W. GOUGH, FUNDAMENTAL LAW IN
ENGLISH CONSTITUTIONAL HISTORY 30-47 (1955); Charles M. Gray, Bonham’s Case Reviewed, 116
PROC. OF THE AM. PHIL. SOC’Y. 35 (1972); S. E. Thorne, Dr. Bonham’s Case, 54 L.Q. REV. 543
(1938); Theodore F.T. Plucknett, Bonham’s Case and Judicial Review, 40 HARV. L. REV. 30 (1926).
115. Sir John Baker, Human Rights and the Rule of Law in Renaissance England, 2 NW. U. J.
INT’L HUM. RTS. 3, ¶ 20 (2004), at http://www.law.northwestern.edu/journals/JIHR/v2/3
(using the happy phrase “presumption of righteous intentions” to describe judicial
interpretation of statutes passed by the English Parliament); see also Louis L. Jaffe & Edith G.
Henderson, Judicial Review and the Rule of Law: Historical Origins, 72 L.Q. REV. 345, 362-64
(1956).
116. See John T. Noonan, Jr., Foreword: A Silk Purse?, 101 MICH. L. REV. 2557, 2558 (2003);
see also Sheffield v. Radcliff, Hob. 334, 346, 82 Eng. Rep. 36 (K.B. 1615) (containing a pertinent
statement to this effect).
AMLR.V3I1.HELMHOLZ.FINAL.WS
Spring 2005]
9/16/2008 4:12:32 PM
NATURAL LAW
19
still played an important role in the administration of justice and the
enforcement of human rights.
This approach was particularly effective in securing procedural
safeguards for litigants: natural law guaranteed to the parties an
opportunity to be heard, a privilege not to be forced to incriminate
themselves, and the chance to present evidence and legal argument
on their own behalf.117 They were entitled to an impartial judge;
otherwise, their trial was not justice at all. Rules and statutes were
interpreted so as to protect these rights. And it went beyond
procedural due process, even to the case of slavery. Statutes and
private documents dealing with slavery were read to resolve doubts
in favor of freedom. Hence arose the famous favor libertatis in the
law. For instance, a master might prevent his slave from being
ordained and thereby become entitled to his freedom, but he had to
do so promptly and expressly, else his power over the former slave
would be gone. The law provided many ways a slave might attain
freedom,118 but the jurists of the ius commune did not conclude that
positive laws recognizing slavery could be declared void and slaves
freed by judicial fiat. In the course of time, the argument would be
made.119 But even then, few men contended that judges could “strike
down” the ordinances upon which that iniquitous institution was
founded. The law of nature did not work that way, and only in an
age of legal positivism could it be supposed that it must have.
You may also think, as I do, that the favor libertatis endorsed in
the law of nature and applied in the ius commune therefore left
something to be desired as a way of protecting human freedom. It
was not inconsequential; it was not theoretical froth, but neither was
it a constitutional trump card. Say all we can about the existence of
natural rights under the ius commune, “[s]till, the limitations stand
117. See, e.g., Kenneth Pennington, Innocent Until Proven Guilty: The Origins of a Legal
Maxim, 3 A ENNIO CORTESI 59 (Domenico Maffei ed., 2001) (accessed by author); R. H.
Helmholz, Origins of the Privilege Against Self-Incrimination: The Role of the European Ius
Commune, 65 N.Y.U. L. REV. 962 (1990).
118. See, e.g., HOSTIENSIS, SUMMA AUREA, Lib. I, tit. De servis non ordinandis [On the fact
that slaves should not be ordained], no. 5 (Venice 1574), 232 (“Qualiter servus fiat liber? Multis
modis” (going on to list several ways)) (accessed by the author); see also id. at no. 11 (stating an
alternate formulation on eleven different forms manumission could take) (accessed by the
author).
119. BENJAMIN FLETCHER WRIGHT, JR., AMERICAN INTERPRETATIONS OF NATURAL LAW 212-28
(1931).
AMLR.V3I1.HELMHOLZ.FINAL.WS
20
9/16/2008 4:12:32 PM
AVE MARIA LAW REVIEW
[Vol. 3:1
out.”120
In discussing statutes that contradicted natural law
principles, we will do better to stick with a minimalist description of a
particular law’s unlawful character when not in harmony with
natural law. As the philosophers said, a custom or statute contrary to
natural law cannot be law “in the fullest sense,”121 or as Aquinas put
it, such a statute will be “a perversion of the law.”122
THE ENGLISH CASE LAW
The third topic is case law. This section will be very brief, in part
because I have more work to do. The question is whether the
acceptance of the law of nature by English common lawyers,
considered in the context of then contemporary understanding of
natural law, meant anything in practice. Did natural law have any
impact on the English case law? And, in particular, did natural law
play any role in the assertion of human rights in the common law?
The evidence on the point is equivocal. An anonymous late
thirteenth-century commentator on Bracton said, “In England less
attention is paid to natural law than anywhere else in the world.”123
However, there is also evidence on the other side. Norman Doe has
made a careful study of the Yearbooks, the principal source of English
case law from the end of the thirteenth century to the first third of the
sixteenth, finding some express recognition of the law of nature as
playing a part in English law. For example, in a case from 1468,
William Yelverton, one of the judges of the King’s Bench, was
recorded as speaking of the ley de nature as “the ground of all laws”
and therefore to be adopted in cases where no settled rule existed.124
The English law also incorporated a favor libertatis very much like
120. Kenneth Cmiel, The Recent History of Human Rights, 109 AM. HIST. REV. 117, 127
(2004).
121. See BRIAN BIX, JURISPRUDENCE: THEORY AND CONTEXT 72-73 (1996) (“[I]t is normally a
mistake to try to evaluate the discussions of writers from distant times with the perspective of
modern analytical jurisprudence.”).
122. SUMMA THEOLOGICA, supra note 94, Part I-II, Question 95, Article 2.
123. Select Passages from Bracton and Azo, in 8 PUBLICATIONS OF THE SELDEN SOC’Y 125
(F.W. Maitland ed., 1894) (“[I]n Anglia minus curatur de jure naturali quam in aliqua regione de
mundo.”).
124. Y.B. (1468) Mich. 8 Edw. IV, f. 12b (pl. 9) (“ley de nature que est le ground de touts
leys”) (accessed by the author); see also NORMAN DOE, FUNDAMENTAL AUTHORITY IN LATE
MEDIEVAL ENGLISH LAW 70-71 (1990); S. B. CHRIMES, ENGLISH CONSTITUTIONAL IDEAS IN THE
FIFTEENTH CENTURY 196-211 (1936); GOUGH, supra note 114, at 12-29; D. J. Ibbetson, Natural Law
and Common Law, 5 EDINBURGH L. REV. 4 (2001); THIEME, supra note 10, at 32-38.
AMLR.V3I1.HELMHOLZ.FINAL.WS
Spring 2005]
9/16/2008 4:12:32 PM
NATURAL LAW
21
that endorsed as part of the law of nature in the ius commune.125 And
natural law thinking played a role in some of the common law’s most
famous cases: Calvin’s Case,126 Somerset’s Case,127 and Moses v.
Macferlan,128 for example.
However, nothing is conclusively proven by these examples. The
favor libertatis may be coincidence, and Doe also found that express
invocation of the law of nature was not particularly frequent in the
medieval cases. My own study of the cases from the post-Yearbook
era, although still far from complete, supports Doe’s conclusions. The
common lawyers used the concept of reason in interpreting statutes
and deciding cases more often than they made explicit reference to
the law of nature. The former was exactly what St. German said the
common lawyers did in making use of ideas from the traditions of
natural law,129 and the habit endured long after 1500.130 But it may be
that the common lawyers were simply using a practical tool they had
at their disposal without the slightest thought of the law of nature.
On the other hand, the matter ought to be looked at without
anachronism. And the opposite has sometimes happened in the
study of the history of the establishment of freedom from arbitrary
government in England during the seventeenth century. It is
commonly asked whether the lawyers who argued for these rights
125. See, e.g., William Hawkins, The Old Tenures, in EDWARD COKE & WILLIAM HAWKINS,
THREE LAW TRACTS 313 (London, His Majesty’s Law-Printer 1764) (noting a procedural rule and
commenting, “for the law is such in favour of liberty”) (original spelling). For modern
commentary, see PAUL HYAMS, KINGS, LORDS AND PEASANTS IN MEDIEVAL ENGLAND 201-19
(1980); R. H. GRAVESON, STATUS IN THE COMMON LAW 26-29 (1953); PAUL VINOGRADOFF,
VILLAINAGE IN ENGLAND 83-85 (Oxford, Claredon Press 1892); J. H. Baker, Personal Liberty
under the Common Law of England, 1200-1600, in THE ORIGINS OF MODERN FREEDOM IN THE
WEST 178, at 185-87 (R. W. Davis ed., 1995).
126. See Calvin v. Smith, 7 Co. Rep. 1, 77 Eng. Rep. 277 (K.B. 1608); see also KEECHANG KIM,
ALIENS IN MEDIEVAL LAW: THE ORIGINS OF MODERN CITIZENSHIP 176-99 (2000) (discussing
Calvin’s Case in the present day context); Polly J. Price, Natural Law and Birthright Citizenship
in Calvin’s Case (1608), 9 YALE J.L. & HUMAN. 73 (1997).
127. Somerset v. Stewart, Lofft 1, 19, 98 Eng. Rep. 499, 510 (K.B. 1772) (“The state of slavery
is of such a nature, that it is incapable of being introduced on any reasons, moral, or political;
but only positive law, which preserves its force long after the reasons, occasion, and time itself
from whence it was created, is erased from memory: it’s so odious, that nothing can be suffered
to support it, but positive law.”).
128. 2 Burr. 1005, 97 Eng. Rep. 676, 681 (K.B. 1760) (“[T]he gist of this kind of action [action
to recover debt] is, that the defendant, upon the circumstances of the case, is obliged by the ties
of natural justice and equity to refund the money.”).
129. See ST. GERMAN, supra note 67.
130. Examples are found in FREDERICK POLLOCK, ESSAYS IN THE LAW 62-79 (1922).
AMLR.V3I1.HELMHOLZ.FINAL.WS
22
9/16/2008 4:12:32 PM
AVE MARIA LAW REVIEW
[Vol. 3:1
were relying on natural law or instead on the traditional common
law. If they mentioned both in the course of argument, some modern
historians have accused them of getting mixed up or of becoming
“muddled” in their own thought.131 They ought to have kept their
authorities straight.
In truth, there was no muddle. If we look at the matter from the
perspective of a lawyer who accepted the existence and the
application of the law of nature, as so many English common lawyers
did, justifying a civil right would not have been regarded as requiring
a choice between the teachings of natural law and common law.
Their assumption would have been that the two laws were
harmonious, that the natural law stood behind and supported the
English common law. When looking for the reasoning underpinning
a particular rule of law, they would have believed that both positive
law and fundamental law supported it. Perhaps this was “naïve” in
the sense that our great Justice Holmes used the term. Even if that is
true, it was the ordinary way for an English (or Continental) lawyer of
the time to have thought about a legal right. The lawyer would not
have seen any inconsistency in relying on both the law of nature and
the law of England as protectors of human rights. He would have
assumed that, under ordinary circumstances, they complemented
each other. The history of human rights should recognize this
perspective.
CONCLUSION
A word remains to be said in conclusion. I should at least raise
the question of whether this evidence makes any difference today. Is
anything to be gained by considering the origin and nature of human
rights within the context of the law of nature? The modern notion
that rights derive from the principle of the autonomy of the
individual is the dominant view, but other voices are being heard, or
at least raised. Some scholars believe there is something to be gained,
although to an outsider it appears that most of them are concerned
with American constitutional law than with international human
rights. Still, concrete advantages might come by recognizing the force
of the older conception. It might help work towards avoiding the
131. See, e.g., POUND, supra note 9, at 51-53; Thorne, supra note 114, at 543.
AMLR.V3I1.HELMHOLZ.FINAL.WS
Spring 2005]
9/16/2008 4:12:32 PM
NATURAL LAW
23
confusion caused by the contemporary inflation of rights.132 Natural
law once provided a base from which argument proceeded, and it
might do so again.
However, the absence of reference to natural law in the
contemporary human rights literature speaks loudly enough to be
discouraging. Treaties and international conventions, not the dictates
of natural law, provide the normal starting point for discussion and
progress. More basically, the tradition of natural law has long
depended in some measure upon acceptance of the idea of God’s
providential care for mankind. Such acceptance is bound to be
suspect to those who accept the view the law should embrace a strict
separation from the sphere of revealed religion.
Perhaps the most that can be said with assurance, therefore, is that
the history of rights within the Western tradition ought to take note of
the place of natural law in the writings and assumptions of English
common lawyers. In a project devoted to “rethinking rights,” history
has a place. At least it ought to have one. To assert anything more
than that would enter the realm of speculation or contention, and it
has been my intention to stick as close as possible to facts.
132. See generally Wiktor Osiatyński, Human Rights for the 21st Century, 2000 ST. LOUISWARSAW TRANSATLANTIC L.J. 29.